A recent decision by a Board of Inquiry under the Ontario Human Rights Code highlights the risks of making assumptions about the capabilities of disabled employees, and the fact that these risks are perhaps greatest where the disability involves the employee’s mental, not physical, health.
The case, Metsala v. Falconbridge Ltd. (February 8, 2001), involved a payroll clerk hired in 1972. Her employment was stressful, involving inflexible deadlines and considerable overtime work. In 1989, she asked to be transferred, but was told she would have to wait for a vacant job. No vacancy occurred and she went on disability leave, not returning to full-time work until 1993. During the period of her disability leave, she was diagnosed with reactive depression and chronic fatigue syndrome.
Metsala’s disability benefits were cut off in June 1992. At that time, her physician completed a Certificate of Fitness stating that Metsala was fit for half-day, non-intense office work, but not indicating how long her restrictions might last. Although Metsala contacted the company about arranging a return to work with the above restrictions, the company never contacted her or her physician to discuss the matter.
In the fall of 1993, Metsala competed for the first clerical position to be posted since July 1992. Although not the preferred candidate, she won the position. While the company viewed offering Metsala the position as the fulfillment of its obligation to accommodate her, Metsala testified that the subject of how she could be accommodated in the new position was never mentioned.
The evidence at the hearing showed that, in the period between June 1992 and December 1993, Falconbridge had filled five clerical positions on a contract basis. There was also evidence showing numerous examples of miners on short-term disability being offered clerical positions for which they had no experience or skills.
Metsala filed a complaint with the Ontario Human Rights Commission, alleging that Falconbridge had discriminated against her on the basis of handicap by failing to adequately accommodate her return to work.
DISCRIMINATION CLAIM MADE OUT
The Board of Inquiry upheld Metsala’s claim, awarding her damages for lost wages and $10,000 in general damages for Falconbridge’s “egregious” behaviour in making no effort to assist her return to work. Finding that reactive depression and chronic fatigue syndrome constituted a handicap under the Human Rights Code, the Board held that Metsala had been discriminated against in that she was treated differently from employees suffering from physical handicaps, due largely to the employer’s “assumptions and stereotypes”:
- “[Metsala] was treated unequally vis-a-vis other employees when she was not provided with contract work or general clerical duties from June 1992 to December 1993 and was required to compete for the position of Production Clerk in December 1993. In the Board’s view, [she] was treated differently as compared to other employees with medical restrictions because of the assumptions Falconbridge made about the effects of her particular handicap, a mental disorder, and because of their failure to make the appropriate inquiries to gather accurate information.”
NO DEFENCE, NO ACCOMMODATION
The next step was to see whether Falconbridge could establish either that Metsala was incapable of performing the duties of the contract positions or general clerical duties, or that returning her to work in these positions amounted to undue hardship. The Board had no difficulty determining that neither defence had been established. Falconbridge, because it had not even considered Metsala for the available positions, could not prove that she was incapable of performing the duties of those positions:
- “Having failed to look beyond the Certificate of Fitness, which clearly indicated that [Metsala] could be returned with some restrictions and more importantly did not clearly … indicate her unsuitability for [the positions], Falconbridge has failed to establish that it had an objective basis for concluding that she was incapable of fulfilling the duties associated with that work in June 1992 and remained so until December 1993.”
Nor had Falconbridge brought forth any convincing evidence that returning Metsala to work would have entailed undue hardship. Falconbridge had argued that the duty to accommodate did not require it to create a position for Metsala. However, noting that Falconbridge had offered other disabled employees general clerical duties, the Board rejected this contention:
- “Even if the Code could not oblige an employer to “create” positions …, its undertaking to so in some cases exposes to scrutiny its decision not to do so in others. The standard of that scrutiny is whether the extension of the practice to the employee in question would constitute undue hardship for the employer.”
Nor could Falconbridge say that awarding Metsala the position in December 1993 when she was not the preferred candidate constituted accommodation. Its obligation to accommodate Metsala arose in June of 1992, when she presented the Certificate of Fitness.
In Our View
Falconbridge’s case suffered not only from its failure to show that it had made any effort to find modified work for Metsala, but also from the very fact that it had done so for other workers. The Board saw this discrepancy both as evidence of direct discrimination against Metsala as compared with its treatment of physically disabled workers, but also as a negation of the company’s claim that offering Metsala a position would have amounted to undue hardship.
An employer must be prepared to show that it made a serious effort to find a disabled employee meaningful and productive work within his or her capabilities. If that effort is unsuccessful, the employer then must demonstrate either that the employee would not cooperate in the accommodation, or that accommodation was impossible without incurring undue hardship.
For further information, please contact Carole Piette at (613) 563-7660, Extension 227.